A Colorado Criminal Defense Attorney on Cell Phone Searches
So you’ve been placed under arrest, and right there on the spot, the police snatch up your phone and start perusing it, looking at your call history for evidence they can use against you. Is that legal? What if they search your text message history? What if they wait until you’re en route to jail, and they search your phone in the police car?
The rules about when the police are allowed to search for what inside of any confiscated electronics is one that’s in great debate around the country, but in Colorado, thus far, the courts have come to a single unambiguous conclusion.
The only time the police are allowed to search your phone without a warrant is at the scene of your arrest, at the time of your arrest, as a ‘search incidental to the arrest.’ ‘Incidental to the arrest’ means ‘the cops searched your person because they were arresting you.’ This has been part of common law since the beginnings of common law in Britain — it’s a natural assumption that, for their own safety, the police would search you and confiscate anything they find that might be dangerous or provide further evidence of your crime.
But that’s not the only rule cell phone searches must follow.
The only thing on your phone that Colorado police are allowed to search is your call history.
If they want to obtain text messages, videos, pictures, or even your Calendar information, they must do that later, through the usual route of obtaining a search warrant. They can and likely will, however, keep possession of your cell phone for as long as it takes the search warrant to be processed.
Note that this law has been directly contravened by the United States Supreme Court, who ruled on July 15th, 2014 that all searches of cell phones required a search warrant — which means that a Colorado criminal defense attorney willing to challenge the law might be able to overturn it and render such a search retroactively illegal. That would, in turn, force the court case to proceed without any of the evidence discovered in that search contributing to the case.